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Appeal of Claim by James HauberCopyrighted November 6, 2023 City of Dubuque Consent Items # 04. City Council Meeting ITEM TITLE: Appeal of Claim by James Hauber SUMMARY: Senior Counsel recommending denial of an appeal of a claim against the City filed by James Hauber for property damage. SUGGESTED Suggested Disposition: Receive and File; Concur DISPOSITION: ATTACHMENTS: Description Type Memo Staff Memo Appeal Request Supporting Documentation Claim Form Supporting Documentation ICAP Denial Letter Supporting Documentation THE C DU�-Ia'-E MEMORANDUM Masterpiece on the Mississippi BARRY A. LINDAHL, SENIOR COUNSEL MEMO To: Mayor Brad M. Cavanagh and Members of the City Council DATE: October 25, 2023 RE: James Hauber Claim Denial Appeal This is an appeal by James Hauber to the City Council from the denial of his claim for damage to his residence which resulted from a sewer blockage within sewer manhole SANS01991. The claim was referred to Public Entity Risk Services (PERS), the claims agency for the Iowa Communities Assurance Pool. PERS investigated the claim and determined that the City was not at fault. As the Iowa Supreme Court stated in Scholbrock v. City of New Hampton, 368 N.W.2d 195, 197 (Iowa 1985): Iowa courts have long recognized that a municipality which provides drains and sewers to its residents may be liable in tort if it fails to exercise reasonable skill and care in providing that service.* * * * At the same time, we have held that a city is not an insurer in providing sanitary sewer service and is liable only for negligence in the performance of its duty owed to the public. Hemminger v. City of Des Moines, 199 Iowa at 1306, 203 N.W. at 824; see Meeker v, City of Clinton, 259 N.W.2d 822, 830 (Iowa 1977) ("[A] municipality is not an insurer of the condition of its drains and watercourses."); see generally 57 Am.Jur.2d Municipal, School, and State Tort Liability § 208, at 188-89 (1971): The law is well settled that a municipality, while not an insurer of the safe condition of its sewers, is liable for damages resulting from its failure to OFFICE OF THE CITY ATTORNEY DUBUQUE, IOWA SUITE 330, HARBOR VIEW PLACE, 300 MAIN STREET DUBUQUE, IA 52001-6944 TELEPHONE (563) 583-41131 FAx (563) 583-10401 EMAIL ba{esq@cityofdubuque.org exercise ordinary or reasonable care to keep them in repair and free from obstructions. In addition to the foregoing common law principles of a city's responsibility for a defective sewer, Iowa Code Section 670.4(1) provides that a city is immune for liability for "(f) Any claims for damages caused by a municipality's failure to discover a latent defect in the course of an inspection." In the absence of actual knowledge or constructive notice of a defect in the sewer, the City is not liable for the damages claimed. The City Attorney's Office concurs with the conclusion that the City is not liable for the damages. BAL:JLM cc: Michael C. Van Milligen, City Manager Crenna M. Brumwell, City Attorney Arielle, Public Works Director Brenda Snyder, Public Entity Risk Services James Hauber I% CLAIM AGAINST THE CITY OF DUBUQUE, IOWA This written report constitutes your claim against the City of Dubuque, Iowa. You should complete this form in full and attach any additional information that supports your claim. The Claim must be filed with the City Clerk at City Hall, 50 W. 131" St., Dubuque, IA 52001. It will then be referred by the City Council to the appropriate department for investigation. Once that investigation is completed, a report and recommendation will be submitted to the City Council. You will be provided with a copy of that report and recommendation. THE FINAL DECISION ON ALL CLAIMS IS MADE BY THE CITY COUNCIL. NO EMPLOYEE OF THE CITY OF DUBUQUE HAS THE AUTHORITY TO MAKE ANY REPRESENTATION TO YOU AS TO WHETHER YOUR CLAIM WILL OR WILL NOT BE PAID. Name of Claimant: �U� et 2. Address. City: L)La lJ{;@„ State: Zip: L) � 5 3. Telephone Number; G_ 15S 0 1 4. Date of Incident: �0I'ol — 5. Time of Incident: T00 W '" S — �'ODAM-- �'-00-PI-A 6. Location of Incident (Be specific): 1 7. DESCRIBE ACCIDENT OR OCCURRENCE THAT CAUSED INJURY OR DAMAGE. (Give full details upon which you base your claim. If a City employee was involved, give the employee's name.) 8. What were weather conditions like? ��._ $'�6 Sunny [ c 9. Give name and address of any witnesses: 90)01 (<-0 ri� Sce �t Plu"N RIM S�01'111�izce 10, Did police investigate? (If so, give names of officers.) 11. Was anyone injured? (If so, give names, addresses, and extent of injuries). Uf U 12, Was any damage done to property? (it so, describe property and the extent of damages. ,attach estimates of damages or describe basis for ascertaining extent of damage.) 13. What other damages do you claim, if any? She er PIV'4 n a -rui �a 14. Have you been compensated for any part or all of your claim by any insurance company? (If so, give name and address of insurance company and amount paid.) WO 16. What amount do yo claim from the City of Dubuque? 16. Why do ypu claim the City of,Dubuque is responsible? P' 17. Have you made any claim against anyone else for damages as a result of this incident? (If yes, give name and address.) 18. if the answer to Question 17 is yes, have you received any payment from that source, and if so, in what amount? .1 ,, Dated at Dubuque, Iowa this 90 day of IALrLb ]a. (Signature) �;A L-5 7 (Print Name) (Rev. 5/18) Filing a Claim When Should 1 File a Clahn? if you have sustained an Injury or damage for which you believe the City or onP of its employees is responsible, you may file a claim against the City. How Do I Request a Claim Form? in order to obtain a clalr-a, forte, please contact or visit one of the following City offices: ,Q±V Clerk's_ Office. City AttultieVs ©lfica City Hall Harbor Vlow Place, Ste. 330 50 W. 131h St. 300 Main St. Dubuque, IA 52001 Dubuque, IA 52001 66:3.589.4120 bfi3.5$3.41 i 3 Can I Semi ha Additional Information with the Claim Form? Yes, It Is recommended that you send in as much information as possible with your claim form In order to expedite the investigation of the clairn. This includes, but is riot lirniied to, estimates, receipts, medical bills, pictures and any other Information you feet may be relevant to your claim, it is also recommended that you send in copies of those items and keep the originals for your records. What Happens After I File My claim? Once a claim has been received and tile -stamped by the City Clerk, it is forwarded to the City Attorney's Office for Investigation. Claims Involving personal Injury or substantial property damage will be forwarded to the City's claims agency for investigation. You will receive a letter from Ilia City Attorney's Office Indicating that your clairn has been forwarded to the claims agency. This letter will also contain thr: claims agency's contact information. A claims adjuster will then contact you regarding your claim. At that point, any questions regarding your nlralin should be addressed to the claims adjuster. All other claims will be forwarded to the appropriate City department for Investigation. After speaking with employees and consulting department records, the department manager! supervisor will make a recommendation as to whether the claim shuuld be approved or denied. Based on that Information, the City Attorney will then make a recommendation to the City Council as to whether the claim should be approved or denied. If the City Attorney recommends that the claim be denied, you will receive a copy of the department manager / supervisor's report along with the City Attorney's report to the City Council. If the City Attorney recommends that the claim be approved, you will receive the City Attorney's report to tine City Council as well as ra release form to be signed and returned to the City Attorney's Office. These are only recommendations. It Is Important to note that the final decision on all claims [a made by the City Council. No employee of the City has the authority to make any representation to you as to whether your clairn will or will not be paid. If the City Council approves the claim for payment at Its City Council meeting, a check will be mailed to you provided the City Attorney's Office has received your signed release form. What If My Claim is Denied by the City Council? The City Council makes its determination at City Council meetings, which are held the first and third Monday of each month. We recommend writing a letter to the City Council Indicating why your claim should not be denied and any additional information that you have to support your claim. It is not necessary to appeal the City Attorney's recommendation for denial of your claim before the City Council makes its determination, however, you may do so. You are invited to attend the City Council meeting when ynur claim will bu decided; however, your attendance is not mandatory and you still have the right to appeal the City Council's decision arty time after It ties been made. If your claim or appeal Is denied, you have the option of filing a lawsuit in a court of appropriate jurisdiction. How Long Lao I Have to Wait Before my Claim is Resolved? The length of tittle It lakes to Investigate and resolve a claim depends largely on the nature of the claim and the amount of damages Involved. Some claims may take a few weeks to resolve, while others may take longer. 1f you wish to check on the status of your claim or If you have any questions or concerns about the process, contact the City Attorney's Office at 563.583.4113. HOW You may file a claim at any time. However, If your claim is denied by the City Council and you wish to file a iaWsuit, you should be aware that state law may limit the time In which to file a lawsuit. Confidential This communication and any attachments may contain information which is confidential and privileged by law and is for the use of the designated recipient. If you are not the intended recipient, you are hereby notified that you have received this communication in error, and that any review, disclosure, dissemination, distribution or copying of its contents is prohibited. Please notify City of Dubuque immediately by telephone at (563)-589-4120 of your receipt of these items and destroy the communication and any attachments immediately. Further disclosure of this information may violate state and federal restrictions. Confidential information may include the following: 1) Social Security Number(s) 2) Medical/Health Information 3) Personnel/Disciplinary information 4) Bank Account Information 5) Financial Information 6) Credit Card Numbers If any documentation you desire to submit to the City of Dubuque contains any of the items above this cover sheet must be attached directly to the confidential information and indicate the type of information that is included. I, ^ - Jbxw +r t,���»C _ hereby certify that the attached documents include the following protected information: Social Security Number(s) Bank Account Information Medical/Health Information Financial Information Personnel/Disciplinary Information Credit Card Number(s) I understand that this information may be distributed within the City organization or to agents of the City for processing and I hereby authorize the City to act accordingly taking all precautions to protect my information from unnecessary distribution. �i'gn-at re Date APPEAL TO THE COUNCIL City Clerk 50 W 1311 Street Dubuque TA 52001 9/ 11/23 Dear City Clerk, I am writing to submit a request to appear on a council agenda to appeal to the council regarding reimbursement of $2113.25 for services rendered due to a sewer blockage in manhole SANS01991 on public right of way. Enclosed are supporting documents and pictures showing the blockage within the manhole. Digital copies have been emailed to Katy Wethal 9/7/23.Here is the timeline of events and a brief description of the incident. 6/28/22 - 6/29/22 SEWER BACKUP 8/2/22 JAEGER INVOICE 3/20/23 GSAV CITY OF DBQ CLAIM 6/12/23 ICAP DENIAL OF CLAIM LETTER 6/23 CALL TO JOHN KLOSTERMAN 9/7/23 EMAIL TO KATY WETHAL On 6/28 GSAV eXperlenced a sewer backup which disrupted the ability to do business. Rob Kilcoyne (Technician) Jaeger Plumbing verified the sewer pipe outlet from GSAV to highway was clear via camera inspection. Jaeger determined that the main city sewer line was fully clogged @ manhole SANS01991. Jaeger cleared blockage within the manhole. Before and after pictures enclosed. Best regards, Jim Hauber 3349 Daykin Ct Dubuque IA 52002 5635560135 James@greatsoundsay.com June 12, 2023 James Hauber 3349 Daykin Court Dubuque, IA 52002 RE: Our Member: City Of Dubuque Our Claim No.: 4A2303QORVG-0001 Date of Loss: 06/28/2022 Claimant: James Hauber Dear James, 12951 University Avenue, Suite 120 I Clive, IA 50325 Underwriting/Local Administration: (800) 383-0116 Claims: (888) 520-4074 t'jWW.iC0030w7.com We are handling the above captioned matter on behalf of City Of Dubuque, who is a Member of the Iowa Communities Assurance Pool - ICAP. As part of our analysis, we consider whether our Member is legal liable for your lass. If the Member is not legally liable, then.there is, nv legal obligation to pay your claim. We have completed our investigation of the claim referenced above. We believe that we have obtained all the facts concerning this claim and are able to advise you of our decision. Following analysis of the relevant facts, please be advised that our Member is not at fault for your loss and, therefore, we must deny this claim. If you have additional information regarding this matter that you would like us to consider, please contact me at the number listed below. Sincerely, Shannon Killam Claims Examiner- Multi -Line (515) 639-3117 shannon@icapiowa.com �i IIIIIIIIIIIIIIIIIIIIIIIilillllllllllllRflllllllllllll 6/12/2023 4A2303QORVG0001 562023061219438 •�} 17500 S Join Deere Rd Aae er Dubuque. A52001-8244 FLllhl6ll10 a Pomp, INC. 563-583`667" Bill To Great Sounds Atidio 3345 Daykin Ct Dubuque, 1A 52001 �Invoi°ce Date Invoice # 812/2022 44576 P.Q. No. Terms Project Due on receipt 06/29/2022 Qty Description Rate Amount Cleaned sewer line from building to City sewer main, Plugged 200' from house 300 Sewer Machine Pressure .letter Labor Sales Tax 150,00 250.00 1,575.00 7,00% 150.00 250.00 1,575.00 138.25 Provide Payment balances. us your email address and we can email future invoices. due upon receipt. 1 1/2% service charge on all past due MC/VISA accepted by phone with convenience fee Total $2,113.25 Payments/Credits $0.00 Ualance Due $2,113,25 ', .♦ ►fir s ► r • �`� N . .� _.. `__ _,-'-PJ,�-..T=Y��+.-.a-�'�-' f'R'`� �_-�'•F .-�? fK�.,' -� T!J�i ....ri-+i�+--�;; Yr..it' .. _ ✓.. ,(MYy � - 1( A Vn. 410 9 T morn jUFi � luskrrrlph,, CLAIM AGAINST THE CITY OF DUBUQUE, IOWA N-,e,),�) This written report constitutes your claim against the City of Dubuque, Iowa. You should complete this form in full and attach any additional information that supports your claim. The Claim must be filed with the City Clerk at City Hall, 50 W. 13"' St., Dubuque, IA 52001. It will then be referred by the City Council to the appropriate department for investigation. Once that investigation is completed, a report and recommendation will be submitted to the City Council. You will be provided with a copy of that report and recommendation. THE FINAL DECISION ON ALL CLAIMS IS MADE BY THE CITY COUNCIL. NO EMPLOYEE OF THE CITY OF DUBUQUE HAS THE AUTHORITY TO MAKE ANY REPRESENTATION TO YOU AS TO WHETHER YOUR CLAIM WILL OR WILL NOT BE PAID. 1. Name of Claimant: 2. Address: City: oobug c 3. Telephone Number: Srp3 cJrJ( 4. Date of Incident: �01'14S — State: —1 Zip; SXGD, C 13; 5. Time of Incident: T00AN - 5 — `j 00AN_ ('.00f)" 6. Location of Incident (Be specific): 3 �) kir\ M&O'We- SAM411011 7. DESCRIBE ACCIDENT OR OCCURRENCE THAT CAUSED INJURY OR DAMAGE. (Give full details upon which you base your claim. If a City employee was involved, give the employee's name.) 8. What were weather conditions like? 9. Give name and address of any witnesses: Rob K co pe 5635 W -7 3SslcoGG 10. Did police investigate? (If so, give names of officers.) tj 0 11. Was anyone injured? (If so, give names, addresses, and extent of injuries) 12. Was any damage done to property? (If so, describe property and the extent of damages. Attach estimates of damages or describe basis for ascertaining extent of damage.) `M 13. What other damages do you claim, if any? S&euer PjV6Vkt%Q Ccr l;rc 14. Have you been compensated for any part or all of your claim by any insurance company? (If so, give name and address of insurance company and amount paid.) No 15. What amount do yoM claim from the City of Dubuque? 16. Why do you claim the City r 17. Have you made any claim against anyone else for damages as a result of this incident? (If yes, give name and address.) 18. If the answer to Question 17 is yes, have you received any payment from that source, and if so, in what amount? I Dated at Dubuque, Iowa this U day of Akryfl , 20Y� . (Signature) nt Name) (Rev. 5/18) Confidential This communication and any attachments may contain information which is confidential and privileged by law and is for the use of the designated recipient. If you are not the intended recipient, you are hereby notified that you have received this communication in error, and that any review, disclosure, dissemination, distribution or copying of its contents is prohibited. Please notify City of Dubuque immediately by telephone at (563)-589-4120 of your receipt of these items and destroy the communication and any attachments immediately. Further disclosure of this information may violate state and federal restrictions. Confidential information may include the following: 1) Social Security Number(s) 2) Medical/Health Information 3) Personnel/Disciplinary Information 4) Bank Account Information 5) Financial Information 6) Credit Card Numbers If any documentation you desire to submit to the City of Dubuque contains any of the items above this cover sheet must be attached directly to the confidential information and indicate the type of information that is included. 1, Jhw,c T ko,, ►�t-r , hereby certify that the attached documents include the following protected information: Social Security Number(s) Bank Account Information Medical/Health Information Financial Information Personnel/Disciplinary Information Credit Card Number(s) I understand that this information may be distributed within the City organization or to agents of the City for processing and I hereby authorize the City to act accordingly taking all precautions to protect my information from unnecessary distribution. gnat re Da 159 1 Y a Q( bA Y : • i�� Y i 9 �ais`is�b.e. r e • w, f ,yy ••. ' r f a e f r ;;.. 17500 S John Deere Rd Jaegder Dubuque, IA 52001-8244 b— 563-583-6677 PLUMBING & PUMP. INC. Great Sounds Audio 3345 Daykin Ct Dubuque, IA 52001 Invoice Date Invoice # 8/2/2022 44576 P.O. No. Terms Project 06/29/2022 Due on receipt Qty Description Rate Amount Cleaned sewer line from building to City sewer main. Plugged 200' from house 300 Sewer Machine 150.00 150.00 Pressure Jetter 250.00 250.00 Labor 1,575.00 1,575.00 Sales Tax 7.00% 138.25 Provide us your email address and we can email future invoices. Payment due upon receipt. 1 1/2% service charge on all past due Total $2 113.25 balances. MC/VISA accepted by phone with convenience fee Payments/Credits $0.00 Balance Due $2,113.25 4> 17500 S John Deere Rd Jaeger Dubuque, IA 52001-8244 PLUMBING & PUMP. INC. TO: Great Sounds Audio 3345 Daykin Ct Dubuque, IA 52001 Statement DATE 3/10/2023 AMOUNT ... JAMOUNT ... $2,332.10 DATE TRANSACTION AMOUNT BALANCE 08/02/2022 INV #44576. Due 08/02/2022. Orig. Amount 2,113.25 2,113.25 $2,113.25. 10/31/2022 INV #FC 1557. Due 10/31/2022. Orig. Amount 93.79 2,207.04 $93.79. Finance Charge 11/30/2022 INV #FC 1658. Due 11/30/2022. Orig. Amount 31.26 2,238.30 $31.26. Finance Charge 12/31/2022 INV #FC 1733. Due 12/31/2022. Orig. Amount 32.31 2,270.61 $32.31. Finance Charge 01/31/2023 INV #FC 1871. Due 01/31/2023. Orig. Amount 32.31 2,302.92 $32.31. Finance Charge 02/28/2023 INV #FC 1956. Due 02/28/2023. Orig. Amount 29.18 2,332.10 $29.18.Finance Charge CURRENT 1-30 DAYS 31-60 DAYS 61-90 DAYS OVER 90 AMOUNT PAST DUE PAST DUE PAST DUE DAYS PAST DUE 0.00 29.18 32.31 32.31 2,238.30 $2,332.10 1 12951 University Avenue, Suite 120 1 Clive, IA 50325 Underwriting/Local Administration: (800) 383-0116 Claims: (888) 520-4074 www.icapiowa.com June 12, 2023 James Hauber 3349 Daykin Court Dubuque, IA 52002 RE: Our Member: City Of Dubuque Our Claim No.: 4A2303QORVG-0001 Date of Loss: 06/28/2022 Claimant: James Hauber Dear James, We are handling the above captioned matter on behalf of City Of Dubuque, who is a Member of the Iowa Communities Assurance Pool - ICAP. As part of our analysis, we consider whether our Member is legal liable for your loss. If the Member is not legally liable, then there is no legal obligation to pay your claim. We have completed our investigation of the claim referenced above. We believe that we have obtained all the facts concerning this claim and are able to advise you of our decision. Following analysis of the relevant facts, please be advised that our Member is not at fault for your loss and, therefore, we must deny this claim. If you have additional information regarding this matter that you would like us to consider, please contact me at the number listed below. Sincerely, Shannon Killam Claims Examiner - Multi -Line (515)639-3117 shannon@icapiowa.com